The Interstate Commerce Act: A Final Convocation

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Earlier this year I observed the 125th anniversary of the Interstate Commerce Act, among the most important statutes that Congress has ever enacted. I allowed that a future issue of the Marquette Law Review would publish essays by a number of leading scholars concerning the Act and its legacy. With the summer issue of the Marquette Law Review now out, that future is now.

The remembrance is titled “125 Years Since the Interstate Commerce Act: A Symposium in the Form of a Final Convocation.” As I explain in my Foreword (“The Last Assembly of Interstate Commerce Act Lawyers”), the essays, collectively available at the link at the beginning of this paragraph, are by an impressive collection of scholars:

Most of these essays are short, and each is an engaging assessment of an act whose legacy can be felt today, not only in the general fact of the administrative state whose creation began with the Interstate Commerce Act but also in specific debates (as Prof. Speta demonstrates) about regulation today. We invite you to read the essays.

Milwaukee’s Future in the Chicago Megacity

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Marquette University Law School and the Milwaukee Journal Sentinel will host a conference next week. The conference title—“Milwaukee’s Future in the Chicago Megacity”—reflects that Chicago is one of the world’s emerging “megacities”; for example, it is ranked No. 6 in Foreign Policy magazine’s Global Cities Index (behind only New York, London, Tokyo, Paris, and Hong Kong). An expansive new report by the international Organization for Economic Co-operation and Development argues that closer ties between the Milwaukee region and Chicagoland are of singular importance. At our conference, various panels, involving business leaders, elected officials, and public policy analysts, will assess that argument, with a general eye to these central questions: how closely should the Milwaukee region connect its future to Chicago, and how might that be accomplished through public policy and business might?

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Judge Sutton’s Hallows Lecture

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Hallows LectureMarquette University Law School is fortunate to welcome this week the Hon. Jeffrey S. Sutton of the U.S. Court of Appeals for the Sixth Circuit. Judge Sutton will deliver our annual Hallows Lecture on Tuesday, February 28, at 4:30 p.m. in the Appellate Courtroom of Eckstein Hall. His lecture, titled “Barnette, the Roosevelt Appointees, and the Progressive Embrace of Judicial Review,” focuses on Board of Education v. Barnette, the U.S. Supreme Court’s 1943 decision holding that the First Amendment protected students unwilling on religious grounds to salute the American flag. The 6-3 decision overturned Minersville School District v. Gobitis, a 7-2 decision only three years earlier. Appointees of Franklin D. Roosevelt were central in this drama: Robert H. Jackson wrote for the Court in Barnette, over the dissent of Felix Frankfurter, who had authored Gobitis but found himself abandoned by William O. Douglas and Hugo L. Black. Judge Sutton will discuss how this reversal of course happened so quickly and why it marked a turning point away from the progressive opposition to many forms of judicial review. The lecture is free and open to the public (registration is required) and will bear 1.0 CLE. The Hallows Lecture—perpetuating the memory of the late E. Harold Hallows, Chief Justice of the Wisconsin Supreme Court and longtime Professor of Law at Marquette University—is one of the Law School’s flagship events, precisely because we have been the beneficiary of contributions from such distinguished jurists as Judge Sutton.

Happy Birthday, ICA?

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ICC BuildingTime was, a “multiple-of-25” anniversary of the Interstate Commerce Act would have been an event. Law review symposia and even a speech by U.S. Supreme Court Justice Felix Frankfurter variously marked the 50th, 75th, and 100th anniversaries of the passage, on February 4, 1887, of “An Act to Regulate Commerce,” as the Interstate Commerce Act was denominated. Such celebrations (as these events substantially were) and studies seemed entirely appropriate, not simply on account of the Act’s introduction of federal entry-and-exit and rate regulation into the world of interstate railroads, but also for its status as the harbinger of the administrative state.

How times have changed. Insofar as I have been able to tell, this past Saturday—February 4, 2012—seems to have come and gone without any public notice of its being the 125th anniversary of the Interstate Commerce Act. That, too, is logical enough: after all, the Interstate Commerce Commission (ICC) created by the Act was abolished by Congress in 1995, and the landmark building along Constitution Avenue (pictured here) has been rededicated to other purposes of the federal government. At the same time, the Act lingers: there is no sign of the coming abolition of most of the ICC’s various descendants (grandchildren, I suppose they must be, if the ICC is the “granddaddy of them all,” as we are sometimes told), such as the Federal Communications Commission and the Federal Energy Regulatory Commission. And no one would suggest that the now larger administrative state is in danger of passing away anytime soon.

In all events, whether for its lasting effects or for itself in its time, the Interstate Commerce Act is worth remembering. So we will fill the void, as it seems. I will be joined by six distinguished scholars of regulated-industries law in writing short remembrances of the Interstate Commerce Act:

  • Richard D. Cudahy, Senior Judge, United States Court of Appeals for the Seventh Circuit
  • Paul Stephen Dempsey, Tomlinson Chair in Global Governance in Air and Space Law, McGill University
  • James W. Ely, Jr., Milton R. Underwood Professor of Law Emeritus and Professor of History Emeritus, Vanderbilt University
  • Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia University
  • Randall C. Picker, Paul H. and Theo Leffmann Professor of Commercial Law, University of Chicago
  • James B. Speta, Professor of Law, Northwestern University

Prof. Speta and I will edit these essays for a future issue of the Marquette Law Review; we may find a spot for them on this blog during the next several months.

Collecting Judges, Past and Present

Posted on Categories Eastern District of Wisconsin, Judges & Judicial Process, Public, Seventh Circuit1 Comment on Collecting Judges, Past and Present

Tom Shriner’s recent remembrance of Judge Dale Ihlenfeldt said to law students and new lawyers that “you can—must—learn the lessons of the law (and life) from everyone, not just your professors, but your colleagues, your adversaries, your clients, and even from judges.” This last (neatly phrased) is the case, in my estimation, both of judges whom one knows and of others whom one has never met. One should collect judges, as Tom and I say to the students in our courses.

Two whom I have collected in my time in Wisconsin are Chief Justice Shirley S. Abrahamson and Seventh Circuit Judge Diane S. Sykes, L’84. While I have previously alluded to their friendly competition with one another on the Wisconsin Supreme Court, as it seemed to me, I do not seek to remember them here: They are very much with us. Rather, each herself had occasion in the U.S. Courthouse in Milwaukee, in the past year or two, to remember a late predecessor and friend: Judge Myron Gordon (pictured here, courtesy E.D. Wis.) in Chief Justice Abrahamson’s case, and Judge Terence T. Evans, L’67, in Judge Sykes’s. With permission, I wish to share these remembrances here.

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Marquette Law School Poll

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Marquette University Law School will undertake a substantial statewide polling initiative during 2012. This will be the most comprehensive polling enterprise in Wisconsin’s history, following public opinion through a number of polls over the year. The goal of the Marquette Law School Poll is to provide a balanced and detailed understanding of how voters on all sides view and respond to the issues of the 2012 campaigns. The initiative will build upon the work at Marquette Law School of Mike Gousha, distinguished fellow in law and public policy since 2008, and Alan Borsuk, senior fellow in law and public policy since 2009. Leading the effort will be Charles Franklin, a University of Wisconsin–Madison professor of political science, who will be with us throughout 2012 as a visiting professor of law and public policy. Franklin is a national expert on statistical methods, political polling, elections, and public opinion. With the national attention that Wisconsin will receive in 2012 and Marquette Law School’s growing reputation as a premier neutral site for debate and civil discourse on matters affecting the region and points beyond—and with Franklin, Gousha, and Borsuk, together with interested faculty at the Law School and the larger university—there can be little doubt that the time, place, and people are right for the Marquette Law School Poll. The announcement and the underlying reasoning are expanded upon in this press release and in this detailed project description.

Tierney to Deliver Memorial Address

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Milwaukee Bar AssociationI hope that many folks reading this post will elect to attend the Milwaukee Bar Association’s annual Memorial Service: it will be held this Friday, May 6, at 10:45 a.m., in the Ceremonial Courtroom (Room 500) of the Milwaukee County Courthouse. It is an event that a number of us have come rarely to miss—largely because we enjoy it, as I explained in a 2009 blog post noting the remembrance by Tom Cannon of his father, Judge Robert C. Cannon, L’41, and in a post last year anticipating Mike Brennan’s remembrance of his own father, James P. Brennan, L’60. The Memorial Service is an opportunity to remember attorneys who died with the past year, after serving the profession and thus the larger society: some names and careers will be familiar to a particular attendee, whereas others will be unknown to him or her—but in this context the latter are not much less meaningful. I see that this year’s Memorial Address will be delivered by Joseph E. Tierney, III, L’66. That is certainly a longstanding name in this region’s legal profession, as discussed previously in posts on this blog, including Gordon Hylton’s description of the legal education of the first Joseph E. Tierney, L’11 (that’s 1911), and my own account of Joe III’s remarks, at a law school event, concerning his late mother and father, Bernice Young Tierney and Joseph E. Tierney, Jr., L’41. I much look forward to Mr. Tierney’s remarks (no doubt remembering among others his late partner, Paul Meissner, who died within the past year) and to the rest of the special session of court, which is the form that the Memorial Service takes.

Eckstein Hall Named Project of the Year

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Eckstein Hall, our new home, was today named Project of the Year in The Business Journal’s 2011 Real Estate Awards program. The announcement was made at a luncheon program at the Hyatt Regency in downtown Milwaukee: although various awards were announced in advance, this top award was shrouded in secrecy until near the end of the program.

This is a gratifying recognition for the Law School and the broader University — indeed, all who were involved in the project, including the design architect, Shepley Bulfinch Richardson & Abbott, and the construction firm, Opus North Corp. Tom Ganey, University Architect, and I asked Kathy-Kugi Tom and Jerad Protaskey, project managers for the University and Opus North, respectively, to accept the award.

The panel of four judges deciding the awards included Bob Greenstreet, Dean of the School of Architecture and Urban Planning at the University of Wisconsin–Milwaukee and formerly city planner for Milwaukee.

It is an especially welcome honor for all associated with the Law School for a particular reason. The scales of a close competition (especially between Eckstein Hall and the new Columbia St. Mary’s hospital) were tipped by “the impact [Eckstein Hall] was having on the community,” according to Mark Kass, The Business Journal’s editor in introducing the awards.

Nathan Fishbach Honored—and the Law School, Too

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Nathan Fishbach Nathan Fishbach, shareholder at Whyte Hirschboeck Dudek, received the Eastern District of Wisconsin Bar Association’s Judge Myron L. Gordon Lifetime Achievement Award today. That itself might be worth recording in these annals (cf. Prof. Jessica Slavin’s blog post from two years ago concerning awards by the EDWBA to Michael O’Hear and Tom Shriner). For Nathan has been a member of our Advisory Board and otherwise a great friend of the Law School.

But permit me to note that the Law School was allowed to share in the honor in an important (and lasting) sense. For Nathan’s firm, Whyte Hirschboeck Dudek, announced today that it will use the occasion of Nathan’s award to honor him by creating the Nathan Fishbach Student Development Fund at Marquette Law School. My role in this is small (being on the receiving end of a gift or saying “thank you, yes” is easy), but I wish to elaborate on this matter a bit.

Nathan is a highly skilled attorney, with extensive litigation experience on behalf of—and thus demands on his time from—the federal government, commercial interests, and private individuals. Yet even in the press of business, he has struck me with his interest and investment in the future of the profession. An important example of this was his work a decade ago in the founding of the Eastern District of the Wisconsin Bar Association.

Along these same lines, his interest in Marquette Law School has been especially outstanding. A graduate of Villanova Law School, Nathan has been a great champion of our students, speaking to classes, mentoring them individually, and taking the interest—and time—to work with them on their career development.

The Fishbach Fund, created at the Law School by Whyte Hirschboeck Dudek, will support our bringing in speakers, from Wisconsin and across the country (indeed, the world), whose experiences and counsel will help future law students gain a greater sense of the profession into which they are entering. It will also provide for programs, workshops, or other opportunities designed to promote a greater integration between Marquette law students and the profession. That we have been historically good at such integration means that this sort of gift should help us reach for greatness.

Thank you to Nathan for being an engaged exemplar over the years, and to the attorneys of Whyte Hirschboeck Dudek for their selecting Marquette Law School as the place to perpetuate Nathan’s honor.

Rofes Receives Kutulakis Award

Posted on Categories Education & Law, Higher Education, Marquette Law School3 Comments on Rofes Receives Kutulakis Award

AALS Peter RofesIt was a privilege today to attend the lunch of the Section on Student Services at the Association of American Law Schools’ annual meeting. For our colleague, Professor Peter K. Rofes, received the section’s Peter N. Kutulakis Award. This award recognizes the outstanding contributions of an institution, administrator, or law professor in the provision of services to law students. Our Associate Dean for Administration, Bonnie M. Thomson, nominated Professor Rofes for the Kutulakis Award, and Professor Rofes richly deserves it.

Permit me to repeat what I said a year ago concerning Prof. Rofes. The context was my reporting to students, in my beginning-of-semester letter, that Prof. Rofes had elected to return this academic year to full-time faculty duties, in the tradition of the Law School, after lengthy service as director of the part-time program and associate dean for academic affairs. I wished to explain “my thanks and admiration”:

I have been especially impressed by Prof. Rofes’s ability—even while administering the academic program, including determining course offerings, working with full-time and adjunct faculty, overseeing the schedule, and running the Academic Support Program—never to lose sight of the individuals with whom he works and never to fail to make time, for example, for the individual in need of time, attention, or assistance. There is a lesson for you in his work. For your work as a lawyer also will be in support and service of others; indeed, the work of the lawyer inheres most basically in the attention to and care for another. I express at graduation my hope that you have found some models in these, your early days in the profession. You—we—would do well especially to consider the important ways in which Prof. Rofes is an exemplar.

Congratulations, Peter—and thank you.

Appointment of Russ Feingold

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The University has announced today that Russell D. Feingold will join us as Visiting Professor of Law. In addition to noting this announcement, I wish to elaborate briefly upon my decision to appoint Sen. Feingold.

Let me begin with his background. Sen. Feingold is a member of Phi Beta Kappa, a former Rhodes Scholar, and an honors law graduate of both Oxford University and Harvard University. He practiced law for six years with two leading Wisconsin law firms, Foley & Lardner and LaFollette & Sinykin. Sen. Feingold served for ten years in the Wisconsin Senate and eighteen years in the United States Senate, with the latter service concluding earlier this week, after his loss in the November election. He is known for his studious approach to the complex issues before the United States Senate, and particularly before the Senate’s select committee on intelligence and committees on the budget, foreign relations, and the judiciary. Sen. Feingold’s expertise and experience in a range of important legal fields will provide the basis for an upper-level elective course, Current Legal Issues: The U.S. Senate, which he will teach in the spring semester at the Law School. In addition to his teaching, Sen. Feingold will be working on a book concerning issues of the day.

On topics ranging from financing of political campaigns to civil liberties in an age of international terrorism to America’s engagement in Afghanistan, Sen. Feingold has been forthright, thoughtful, and independent. While I do not doubt that some of his views are controversial, or, still less, suggest that all of them are right, an institution of legal education is especially well suited to explore multiple dimensions of such issues. Thus, I believe that Sen. Feingold is almost uniquely well-positioned to contribute to discussion of numerous legal issues at Marquette Law School, through both teaching and writing. This is especially so because, throughout my discussions with Sen. Feingold, I was impressed with the commitment and seriousness with which he approached the role of professor. I am grateful that he will be with us for a time. I hope that you will join me in welcoming Professor Feingold.

Lubar Fund for Public Policy Announced

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Marquette University Law School The University has announced today that Sheldon B. Lubar has made a $2 million gift to the Law School. Mr. Lubar is a much-admired business and civic leader: he is the founder and chairman of Lubar & Co., has been a presidential appointee with Senate confirmation, and has engaged deeply in seeking to improve this region. The gift, one of the largest in the history of the Law School, will create the Lubar Fund for Public Policy. The Lubar Fund will support public policy research and initiatives, including conferences and symposia; faculty research; curriculum development; and programs that enhance the teaching of public policy issues at Marquette Law School. The gift represents extraordinary confidence by a renowned business and civic leader in our public policy work at the Law School. Although that work began to be distinctly recognized with the appointment of Mike Gousha several years ago, it has been my sense—more than an intuition but still evolving into a full plan—that we are only scratching the surface here. I look forward to our effort to mine this field, for the betterment of the community, and am grateful to Shel Lubar for his support and confidence.